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marriage amendmentThe Fourth Circuit today denied a request by parties defending Virginia’s same-sex marriage ban to stay the court’s ruling in Bostic v. Schaefer pending a petition for review by the U.S. Supreme Court.

On July 28 the court held that the Virginia law was unconstitutional and entered judgement on that date. The ruling is scheduled to go into effect on August 18, 2014.

Michèle B. McQuigg, the  Prince William County Clerk of Circuit Court and a defendant in Bostic, told the court that she intends to file a petition with the U.S. Supreme Court by October 26, 2014, and asked that implementation of the ruling be stayed in the meantime, citing the potential of confusion and inconsistent results:

The absence of a stay will likely produce legal uncertainty and confusion. The Utah marriage case serves as a useful example. In Utah, after the district court struck down the state’s marriage laws, the district court and the Tenth Circuit declined to issue a stay.  As a result, many same-sex couples in Utah obtained marriage licenses pursuant to the district court’s injunction. Days later, however, the Supreme Court stayed the injunction, and Utah’s man-woman marriage laws went back into effect. Thus, the State of Utah now declines to recognize the licenses that were issued to same-sex couples during that interim period.

Same-sex couples who obtained licenses during that period filed a lawsuit in federal court to require the State to recognize those licenses as valid. The district court held that the interim licenses must be recognized, but the Supreme Court again stayed that decision pending appellate resolution. Thus, the validity of those licenses is still in limbo.

For more on the Fourth Circuit’s ruling in Bostic, read here.

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At yesterday’s NC Policy Watch Crucial Conversation luncheon on the future of marriage equality, Chris Brook, the Legal Director of the American Civil Liberties Union of North Carolina, made it pretty clear what he intends to argue in federal court when he next gets the opportunity in the organization’s challenges to North Carolina’s marriage discrimination law. Brook said he’s going to point to the Fourth Circuit Court of Appeals in Richmond (the precedents of which apply to North Carolina), show the judge that court’s decision in the recent Bostic v. Schaefer case and then just sit down.

It’s an obvious strategy — namely, that the ruling striking down Virginia’s discrimination law in Bostic is right on point and there really isn’t much that a North Carolina federal judge can do but abide by it.

This is why Attorney General Cooper made his recent announcement that he would stop wasting North Carolina taxpayers’ money by trying to defend North Carolina’s indefensible law.  It would be a futile and costly gesture — not unlike attempting to defend a law that banned interracial marriage.

Of course, as Sharon McCloskey’s story immediately below makes plain, this patently obvious logic is apparently lost on Senate President Pro Tem Phil Berger and House Speaker Thom Tillis who are, quite remarkably (if one of Berger’s members is to be believed), taking steps to impeach Cooper over his utterly reasonable, constitutional and ethically-bound decision.

By all indications, Berger and Tillis simply want Cooper to tilt at the Bostic windmill and manufacture insipid, sure-fire-loser arguments as is being tried in a few other states. Today, we got a good idea of what some of those arguments would look like when the folks at ThinkProgress published a handy list of The 10 Craziest Arguments Two States Are Using to Defeat Marriage Equality.” This is from the post: Read More

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Sanderson-CooperState Sen. Norm Sanderson (R-Pamlico) told those attending the inaugural meeting of the Morehead-Beaufort Tea Party yesterday that the top leadership in both GOP-controlled branches of the legislature are working to remove Attorney General Roy Cooper from office, according to this report in The Carteret County News-Times.

Citing Cooper’s announcement in late July that his office would no longer defend the state’s same-sex marriage ban after the Fourth Circuit found Virginia’s similar law unconstitutional, Sanderson said:

“If he’s not going to defend what we, the citizens of North Carolina, want him to defend, we need to probably impeach him because he’s been a vocal opponent of the marriage amendment ever since it was passed.”

He added that steps are in place once Senate President Phil Berger and House Speaker Thom Tillis give the green light.

“Our leadership hasn’t made the final decision but everything is on ready, set, go if that’s what we want to do.”

Of course, doing what some lawmakers and citizens of the state want him to do is not the job of the Attorney General.

Here’s Jim Tierney, former Maine Attorney General and now director of the National State Attorneys General Program at Columbia Law School:

The simple truth is that attorney general refusal to defend happens all the time.

Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the attorney general to clean this mess up.

The attorney general is supposed to uphold the constitution – that’s his job.

And you want your attorney general telling the truth. If the attorney general in his view says ‘you’ve got some real constitutional issues here,’ I would think any governor would want to know that before he signs a bill.

 

 

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love is loveAs this post on SCOTUSblog reminds us, same-sex marriage cases are now pending in five federal appeals courts, including one in the Fourth Circuit, Bostic v. Schaefer, which was argued in Richmond in May.

How the three-judge panel will rule in Bostic, which deals with Virginia’s same sex marriage law, is not clear cut, according to court-watchers.  From the argument, Judge Roger L. Gregory is apparently leaning toward opposing the ban, with Judge  Paul V. Niemeyer supporting the ban and Judge Henry F. Floyd wavering in the middle.

A ruling in that case, though, may be binding on similar cases in North Carolina, including Fisher-Borne v. Smith and Gerber v. Cooper, both pending in federal court in Winston-Salem,  General Synod v. Cooper, pending in federal court in Charlotte, and McCrory v. North Carolina, pending in federal court in Asheville.

For that reason, magistrate judges in three of the cases have stayed proceedings until a decision is rendered in Bostic and are considering a stay in the fourth (General Synod).

But plaintiffs in Fisher-Borne and Gerber are not waiting patiently for that ruling, saying they have waited long enough. In each of those cases, certain plaintiffs have asked the court to block enforcement of the state’s ban so that their marriages can be recognized and the couples can gain the rights afforded other married couples.

For example, in Fisher-Borne, a couple with a son who has cerebral palsy are unable to get the medical care he needs because state law does not recognize the partner with more comprehensive health insurance as his parent.

In Gerber, plaintiffs with serious illnesses in advanced stages have spouses and in one case a child who will be unable to receive benefits typically afforded spouses and children should those plaintiffs die.

As they argue in their brief to the court:

While this case is stalled, Ms. Mejia cannot establish a legal relationship with her son. Each day, J.G.-M. misses out on the benefits that would be conferred to him as Ms. Mejia‘s legal child, and each Plaintiff continues to suffer from the stigma and indignities that result from the North Carolina‘ ban on same-sex marriage. The need for recognition of their marriages is all the more pressing in light of Plaintiffs‘ circumstances. Dr. Berlin is 89 years old and suffers from complex seizures and blood clots that cannot be treated. Ms. Blackburn is 66 years old and has Stage IV cancer. Ms. Mejia, a war veteran, suffers from cancer and currently lives with significant lung damage and a replacement liver that requires her to take immunosuppressive drugs. In light of their ages and medical conditions, Dr. Berlin, Ms. Gerber, and Ms. Mejia each have a substantial fear that she might pass away before her marriage is recognized by North Carolina, depriving her forever of the dignity and social recognition that state recognition affords. If Ms. Mejia passes away, J.G.-M. would also be deprived of the important benefits that flow to children, particularly to children of veterans, by virtue of legal parentage. Each Plaintiff also fears—based on experience—that her right to care for her spouse in medical emergencies will be denied because North Carolina refuses to recognize their marriage.

 

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Southern EqaulityBreaking new ground in the battle against state bans on same-sex marriage, clergy from several denominations across the state joined with six same-sex couples today in filing a lawsuit in federal court in Charlotte, challenging the constitutionality of marriage laws in North Carolina on both First and Fourteenth Amendment grounds.

In General Synod of the United Church of Christ vs. Cooper, the same-sex couples are seeking the freedom to marry and the clergy are seeking the religious freedom to perform wedding ceremonies for such couples.

According to the Campaign for Southern Equality, the case is the first of its kind of the 66 marriage equality cases pending in courts nationally to challenge marriage bans on 1st Amendment religious freedom grounds.

“In addition to bringing 14th Amendment claims under equal protection and due process, this lawsuit introduces a 1st Amendment claim that the marriage ban in North Carolina violates the right to the free exercise of religious beliefs by denominations, clergy, and congregants who believe that same-sex marriages are theologically valid and want to perform marriage ceremonies,”  Jake Sussman, a partner at Tin Fulton Walker & Owen and lead counsel in the case said in a statement released by the organization.

In papers also filed today, the couples and the members of the clergy are asking the court to block enforcement of the state bans on same-sex marriage and the performance of same-sex marriage ceremonies pending a resolution of the case — which they say is likely to end in their favor.

“In recent months, nine district courts have struck down restrictions on same-sex marriage, including courts in Michigan, Tennessee, Texas, Illinois, Virginia, Kentucky, Oklahoma, Ohio, and Utah,” they argue in those papers. “No courts have upheld such a ban.”

The case joins two other actions filed by the American Civil Liberties Union in federal courts here challenging the ban on same-sex marriage and asking the court to block its enforcement pending resolution of the claims asserted.

In Gerber v. Cooper, three same-sex couples married elsewhere are seeking state recognition of their marriages and have asked the court to block enforcement of the North Carolina ban pending resolution of their case because of the serious medical condition of one member of each couple.

And in Fisher-Borne v. Smith, couples who originally filed their case as a challenge to the state’s ban on second parent adoption but then later added a challenge to the ban on same-sex marriage are seeking similar preliminary relief.  A young child of one of the plaintiff couples there is being denied critical medical care because North Carolina neither recognizes his mothers’ marriage nor allows both mothers to adopt their child and establish a legal relationship.